Washington court: Fish and Wildlife can regulate land to protect fish – Capital Press

An extremely important ruling has come down at the Washington State Supreme Court on Thursday. The  unanimous ruling affirmed the right of the Washington State Department of Fish and Wildlife to regulate construction on dry land above the normal tide lines in order to protect fish. This enormously expands the scope of the Hydraulic Permit Code and will likely have great consequences for Governor Inslee’s hand in making policy decisions for protecting additional salmon habitat for Orca recovery. I’m sure that the plaintiffs might wish they had never brought this before the Supreme Court. But there’s also caution for environmental organizations that may celebrate the ruling.

From the case itself. It offers a good basic understanding of what these Hydraulic Permit Applications are and when they are required.

This case asks us to determine the geographic scope of permitting authority delegated to the State of Washington Department of Fish and Wildlife  (Department) over hydraulic projects. A “hydraulic project” is defined as “the  construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state.” RC_W 77.55.011(11).
Entities seeking to undertake hydraulic projects must apply for and obtain permits from the  Department before commencing work. RCW 77.55.021. In this case, a coalition of  Washington State counties (Counties) challenge the Department’s statutory authority to regulate the construction or performance of work that will occur exclusively above the ordinary high-water line.
The Hydraulic Code requires anyone planning to undertake a hydraulic project to obtain a preconstruction approval permit from the Department to ensure “the adequacy of the means proposed for the protection of fish life.” RCW 77.55.021(1).
The Department can deny or condition a permit only for the purpose of protecting fish life. RCW 77.55.021(7)(a). The Department’s regulatory authority encompasses hydraulic projects, which are defined based on their effects on waters of the state rather than their location relative to those waters. See RCW 77.55.011(11).
An HPA [hydraulic project approval] is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the [ ordinary high-water level] of state waters.
An HPA is also required for bridge painting and other maintenance where there is potential for paint, sandblasting material, sediments, or bridge parts to fall into the water.
Did the legislature intend to limit the Department’s permitting and regulatory authority to cover only projects that take place at least partially at or below the ordinary high-water line?
We hold that under the plain language of RCW 77.55.021, the Department’s jurisdictional grant of permitting authority includes upland projects that meet the effects test set forth in RCW 77.55.011(11). We further hold that the effects test requires reasonable certainty, not absolute certainty. Finally, we defer to the expertise of the Department to determine which upland activities meet the effects test. Accordingly, we affirm the trial court’s order.
The findings are that WDFW has authority to require HPAs for upland projects that fit the scope of the legal codes. That the requirements can be done by reasonable certainty and not a strict legal finding of certainty,  which gives much greater leeway for WDFW to issue requirements for an HPA. Lastly, the Supreme Court defers to the expertise of the Department  to determine which activities meet the requirements.
This last finding may be a double edge sword. What if the Department is wrong in a finding, siding with a developer who has huge resources and proposes enormous or highly unusual trade offs for the idea of “no net loss”?  What if they don’t decide to force an HPA (or agree with a developer intent on massive environmental change) and an environmental organization challenges that? The ruling here seems to give much greater leeway to excesses of the Department in both directions. That may not be as positive a win for environmental organizations as it appears. It requires close oversight to make sure that the law is narrowly applied to appropriate projects, while also ensuring that bureaucrats are not simply rubber stamping inappropriate and possibly habitat destructive projects.
Here’s a link to the ruling:

Read the Capital Press story here:





Permit fee added for construction near state waters – Kitsap Sun

If people won’t approve new taxes, and the job of permitting needs, by law to be done, we best expect and get used to higher fees for everything. Welcome to the future that so many anti-tax people were selling us. (and this happening under a mostly Democratic legislature!) You thought that being anti tax would reduce your costs? Certain laws of nature are not going to go away.


A permit for construction in and around state waters — free of charge since the program started in 1943 — will now cost $150 for processing. The permit, called a hydraulic project approval, or HPA, is used to ensure that construction projects adequately protect fish and shellfish. Christopher Dunagan reports.


Environmental Lawsuit Forces Changes to Sand and Gravel Permitting

Another reason why sometimes lawsuits actually work to change behavior for the better. This lawsuit has forced a change on 950 businesses that sometimes dump polluted water into streams, lakes and the Sound. While I have been critical of Puget Soundkeepers Alliance in the past, due to their heavy handed approach to the copper pollution problem of boatyards, this seems to have been a worthwhile approach.

Political action and sometimes lawsuits, is important in this time where so many environmental groups are simply focusing on restoration projects, because the money is there. We can restore all we want, but if the people who want to destroy the environment (either purposely or not) are allowed to continue bad behavior, then the efforts will ultimately fail.

Department of Ecology modifies state’s sand & gravel permit

OLYMPIA – The Washington Department of Ecology (Ecology) has modified the state’s Sand and Gravel General Permit.

The permit is part of Washington’s responsibilities in administering the Clean Water Act.

The changes, while relatively minor, represent increased environmental protections. For example, the new permit reduces the level of turbidity and solids that facilities may discharge into Washington’s waters, and it requires portable operations to provide public notice prior to their activities.

The action settles an appeal of the permit by the Puget Soundkeeper Alliance (PSA). The Washington Aggregates and Concrete Association intervened in the appeal, supporting Ecology’s original permit.

The state’s sand and gravel permit regulates water discharges from sand and gravel operations, rock quarries, and similar mining operations. The permit also covers concrete batch operations and hot mix asphalt operations, and sites that stockpile mined materials.

Untreated discharge water from sand and gravel operations can harm fish, aquatic life and water quality.

Ecology held a public comment period and convened a public hearing and workshop on the permit modification.

The permit covers about 950 facilities in Washington. The changes go into effect Oct. 1, 2011. The new permit and public comments about the changes are posted online here.

If you have questions about the permit, contact Ecology’s Gary Bailey at 360-407-6433 or email gary.bailey@ecy.wa.gov .

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